Smith v. Commonwealth

292 S.E.2d 362, 223 Va. 721, 1982 Va. LEXIS 259

Opinions

STEPHENSON, J.,

delivered the opinion of the Court.

Lacy Harold Smith appeals the judgment of the trial court approving a jury verdict finding him guilty of selling lysergic acid diethylamide (LSD) and fixing his punishment at 25 years in the penitentiary and a fine of $5,000.

Footnotes

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* The only question presented is whether the testimony by an analytical chemist regarding the behavior which could result from the use of LSD prejudiced Smith’s right to a fair trial.

Danilo Myer, the chemist, testified for the Commonwealth that he examined the substance in question and identified it as LSD. The court then asked Myer what effect LSD had on the human body. After stating he could speak only from what he had researched and learned and not from personal observation, Myer testified, over Smith’s objection, as follows:

In my opinion the lysergic acid diethylamide, LSD, is a very potent drug. Most drugs are given in milligram amounts. Okay. Most drugs like valium, aspirin are given in milligrams . . . which is about a billionth of an ounce. In LSD the concentration that you need to take is one, is micrograms, that’s one trillionth of an ounce. That is one hundred times more potent that most of your drugs right off the bat. The effect that it actually does, it is called a hallucinogenic and it causes your senses to become very distorted. It can make you do some very erratic things, and it’s quite unpredictable in its effects. You may do some very bizarre things. The effects of LSD has been reported to cause a person from, or hallucinogenics in general, I should say, have been, have made people go as far as to tear their eyes right out of their sockets, chew off an arm, jump out of windows, do some really . . . bizarre things.

Smith contends the above testimony was irrelevant to the issue to be determined and only served to inflame and excite the passions of the jury. We agree. See Lane v. Commonwealth, 223 Va. 712, 292 S.E.2d 358 (1982). The sole issue before the jury was whether Smith sold LSD. Myer was called by the Commonwealth to identify the drug.

Evidence which has no tendency to prove guilt, but only serves to prejudice an accused, should be excluded on the ground of lack of relevancy. For evidence to be admissible it must relate and be confined to the matters in issue and tend to prove an offense or be pertinent thereto. Evidence of collateral facts or those incapable of affording any reasonable presumption or inference on matters in issue, because too remote or irrelevant, cannot be accepted in evidence.

Bunting v. Commonwealth, 208 Va. 309, 314, 157 S.E.2d 204, 208 (1967).

The General Assembly has divided drugs and narcotics into a number of schedules. Code § 54-524.84:1 et seq. Among the factors considered in making this classification are:

(1) The actual or relative potential for abuse;

(2) The scientific evidence of its pharmacological effect, if known;

(3) The state of current scientific knowledge regarding the substance;

(4) The history and current pattern of abuse;

(5) The scope, duration, and significance of abuse;

(6) The risk to the public health;

(7) The potential of the substance to produce psychic or physiological dependence liability ....

Code § 54-524.84:1(a). The manufacture, possession and distribution of these scheduled substances are proscribed, and the punishment for violators varies from schedule to schedule. Code §§ 18.2-248, 250.

This classification having been made and the range of punishment established, the jury should not concern itself with background information on the substance, but should make an objective finding of guilt or innocence based on relevant evidence and punish the guilty within the limits fixed by statute. To permit evidence respecting extreme horrors which may result from the use of illegal substances diverts the jury from its principal inquiry and injects an element of passion into the trial prejudicial to the accused

In United States v. Green, 548 F.2d 1261 (6th Cir. 1977), the defendant was charged with conspiracy to manufacture dimethyltryptamine (DMT). The trial court permitted the government’s analytical chemist to testify regarding the scheduling of DMT and its effect on the human body. Holding the trial court abused its discretion by admitting this evidence, the court said:

We see little probative value, however, in his testimony relating to the threat posed by the drug, its bizarre physiological effects upon the body, the procedure by which it may have been classified as a controlled substance, and its relationship to more notoriously abused compounds such as LSD. While it was permissible for the jury to infer that drugs which the law bans may be both dangerous and susceptible to abuse, the cause of justice was not advanced by the Government’s argument to the jury on the particular evil properties of DMT. Such facts may be highly relevant in assessing the need for controlling the drug, but at trial they did not tend to prove a conspiracy charge. They could only serve to prejudice the jury. For this reason trial courts should exercise greater care in drug cases to screen “background” evidence which may be capable of subliminally inciting or confusing the jury.

Id. at 1269-70.

For the reasons stated, we hold the evidence of which Smith complains was irrelevant and prejudicial. Accordingly, his conviction for selling LSD will be reversed and the case remanded for a new trial consistent with the view expressed herein.

Affirmed in part;

reversed in part;

and remanded.

Smith also appeals a conviction for selling marijuana in a quantity exceeding one-half ounce, but not exceeding five pounds, for which he was sentenced to five years in the penitentiary. Finding no error respecting this conviction, we will affirm it.